Holmes v. Morgan

• Decision Date: 26 July 1995
• Docket Number: L-1
• Citation: 899 P.2d 738,135 Or.App. 617
• Parties: Thomas L. HOLMES and Diane R. Holmes, Respondents, v. N. Carlene MORGAN, Appellant, and Aid Association for Lutherans, and Kendra Holmes, Defendants. 92-2439-; CA A82337.
• Court: Oregon Court of Appeals

Page 738

899 P.2d 738

135 Or.App. 617

Thomas L. HOLMES and Diane R. Holmes, Respondents, v. N. Carlene MORGAN, Appellant and Aid Association for Lutherans, and Kendra Holmes, Defendants.

92-2439-L-1; CA A82337.

Court of Appeals of Oregon.

Argued and Submitted Feb. 15, 1995.

Decided July 26, 1995.

Sandra Sawyer, Medford, argued the cause for appellant. With her on the briefs were Mark D. Clarke and Frohnmayer, Deatherage, Pratt, Jamieson, Turner & Clarke, P.C.

[135 Or.App. 618-A] Joseph M. Charter, Medford, argued the cause for respondents. With him on the brief was Werdell, Charter & Hanson.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Forrest Holmes was the eldest son of plaintiffs Thomas and Diane Holmes. In the spring of 1991, while attending Southern Oregon State College, he revealed to his parents that he was homosexual. In June 1992, he committed suicide. Following his death, plaintiffs brought this action against Carlene Morgan (defendant). ¹ They alleged two claims. The first was for a declaratory judgment that the change of beneficiary on Forrest's insurance policy to defendant violated public policy as part of an oral contract to assist Forrest in committing suicide. The second was for interference with economic relations. Defendant appeals the judgment following a jury's verdict in favor of plaintiffs on both claims. We reverse.

On appeal from a jury verdict, we view the evidence in the light most favorable to plaintiffs, the prevailing party. Moini v. Hewes, 93 Or.App. 598, 600, 763 P.2d 414, rev. den. 307 Or. 245, 767 P.2d 75 (1988). The parties presented completely conflicting evidence. Defendant's evidence gave the following version of the facts. When defendant and Forrest first met in July 1990, he was confused about his sexuality but thought that he was homosexual. Forrest began stopping by defendant's house, confiding his personal problems to her. Their relationship was not romantic.

On learning that Forrest was homosexual, his father became furious and told Forrest that he had disinherited him. Plaintiffs told Forrest that he had to move out of their house and that he was to call them "Tom and Diane," instead of "Dad and Mom." Forrest and defendant, who is a registered nurse, agreed that Forrest would rent a room in defendant's home for about three months.

During this time, Forrest was suicidal because of his concerns over his homosexuality and the difficulties with his parents. Defendant testified that she counselled Forrest and that they agreed that she would not have him committed to a mental facility for his own safety if he would take certain steps to improve his mental health.

While living at defendant's home, Forrest told defendant about his insurance policy and that his parents had told him that he could not change the beneficiary. Defendant advised Forrest to talk to his insurance agent. In September 1991, Forrest met with an insurance agent and, without defendant's knowledge, he changed the beneficiary from his parents to defendant as primary beneficiary. Forrest never told defendant about the change.

On October 8, when Forrest did not get up, defendant checked on him, and he appeared to be asleep. Defendant went to work, but later that morning she began to worry about Forrest. She called Diane and, on learning that Forrest had not met his mother as he customarily did, defendant told Diane to go to her house and see if Forrest was all right. When Diane arrived, Forrest was in a coma. Defendant immediately went to the house, and began emergency medical procedures while an ambulance was summoned.

Forrest was hospitalized in serious condition with pneumonia. Defendant's position is that there was no admissible evidence that Forrest's condition was the result of a suicide attempt. Drug and alcohol tests were negative. His treating physician opined that Forrest had probably vomited and aspirated the secretions, setting up pneumonia. After his release from the hospital, Forrest moved for a time to Salt Lake City and then returned to his parents' home, where he committed suicide by shooting himself.

Defendant was surprised when she was notified that she was the beneficiary of the policy, and at first declined to sign the forms because she thought Forrest's parents would be unhappy and she wanted to consult an attorney. About two weeks later, she filed for the proceeds. After being notified that defendant was the beneficiary, Diane related that she had had a telephone conversation with Forrest on September 18, 1991, the day after he had changed the beneficiary. Forrest had told her that he changed the beneficiary because he and defendant had entered into an agreement whereby she would assist him in committing suicide in return for his making her the beneficiary of his insurance policy. Diane had not previously told anyone of the agreement: She had not mentioned it to her best friend, Martha Sundberg, to the family doctor, Forrest's counsellor, the police, paramedics or emergency room personnel. She had not confronted defendant about the alleged pact, even when they were with Forrest when he was found unconscious.

Plaintiffs' evidence presented a totally different version of the events. On learning that their son was homosexual, they were upset, but they loved him and wanted to work through the issue. Forrest moved from the family home because he wanted to after he graduated. Diane continued to see her son almost daily. On September 18, 1991, she received a telephone call from Forrest. He had been drinking. He said that he wanted to commit suicide and that defendant had agreed to help him by obtaining prescription drugs. Defendant had also agreed to bury Forrest in her family's plot and to buy him a large green marble headstone. In payment, he had agreed to name defendant as the beneficiary on his life insurance policy, which his parents had purchased when he was a baby and had turned over to him when he went into the military.

Diane was upset about the suicide plan and made arrangements for Forrest to begin counselling. Forrest went to see Dr. Walters. Forrest had been drinking, and defendant had told him to take a drink before going to see Walters. Walters prescribed the antidepressant Trazadone, which enhances the effect of alcohol. Death may occur when it is ingested with other drugs. Forrest also saw Dr. Mersch, who prescribed the sedative Xanax, which has serious side effects when taken in combination with alcohol, including lethargy and decreased respiration. Xanax disappears fairly quickly from the body and the other two prescriptions drugs Forrest was taking, Hydroxyzine and Trazadone, would not show up on typical drug screens.

On October 8, defendant called Diane and told her that there was to be a cable installation at defendant's residence that day. Defendant asked Diane to check on Forrest, because he had been asleep when defendant had left the house. When Diane did so, she found him asleep and unresponsive. Defendant returned to the residence, and an ambulance was called. While at defendant's home, Diane answered a telephone call from the cable company confirming that the installation was for the next day. At the hospital, defendant told Diane that defendant had a power of attorney signed by Forrest and that defendant did not have to allow any lifesaving measures to be performed. While Forrest was living at defendant's home, she advised him to make a will and a power of attorney, as well as to talk with his insurance agent.

Defendant told the doctors at the hospital that Forrest had been partying with friends the previous evening and that she had checked on him at midnight. When plaintiffs returned to the hospital the day after Forrest had been admitted, he wrote them a note in which he stated, "I blame Carlene."

The treating physician testified that Forrest's pneumonia could have been caused by a drug overdose from sedative drugs. The "whole process" of his condition could be explained by excessive alcohol use, leading to inebriation, vomiting, ingesting the vomit, resulting in pneumonia. The alcohol could have worked out of Forrest's system by the time he was tested.

After release from the hospital, Forrest moved back home with his parents until November 1. On October 21, he began counselling with Dr. Oas, a clinical psychologist. Oas testified that Forrest had related that he had a suicide pact with defendant, that the October incident was "like a dry run," and that he did not want to see defendant under any circumstances. Diane was aware of only one contact between Forrest and defendant after his release from the hospital. Forrest told Diane that he was trying to get defendant to repay him for a charge on his credit card that was a part payment for her assistance in helping him to commit suicide.

Forrest confided to his mother that he had attempted suicide. He said that he didn't tell anyone at the hospital because he was afraid he would be kept there. He told Diane that defendant had said it was easy to take pills and then just go to sleep. Forrest also told Diane that he didn't want to see defendant again and that defendant was a bad influence on him.

Diane testified that she did not tell anyone about the suicide plan, because Forrest had asked her not to and because defendant would not be a threat if Forrest changed his mind about suicide. She testified that he was a 26-year-old adult who was capable of making his own choices regarding his friends.

Defendant's first assignment of error is that plaintiffs' complaint failed to state a claim, because they lack standing to bring the action. She contends that plaintiffs never acquired an interest in the insurance contract but are trying to create one by declaring the contract void. ² She argues that plaintiffs were not third-party beneficiaries and were, at the most, third-party donee beneficiaries. Therefore, she contends, their rights under the insurance contract...